Two remaining judges, however, say they could have ruled had they been unanimous in opinion on Alberta case
ENMAX has been granted a new hearing in the Alberta Court of Appeal, the latest salvo in an almost $170-million lawsuit against TransAlta - but not because one of the judges had been discovered playing Solitaire during the first hearing in July.
Rather, a new hearing must be held because the two remaining members of the appeal court panel aren't unanimous on the merits of the appeal.
“In our opinion, [ENMAX's] proposition that as the two remaining members of the panel, we are required to recuse ourselves and have the appeals reheard by three other judges is entirely without merit,” Justices Peter Martin and Frans Slatter wrote in a decision released Nov. 8.
“All agree that neither of us were aware of our colleague’s inattention. Accordingly, we stand in the same position as the other members of our court whom the appellants urge should hear the matter afresh.”
The decision then goes through case law to argue that the two remaining judges on the appeal court panel “may” decide the appeals if they are unanimous. But a difference of opinion between the two judges now forces a new hearing.
“Unfortunately, our decision as to the outcome is not unanimous. Accordingly, although there is no legal reason for us to recuse ourselves, the only recourse available in the circumstances is that the appeals be reheard by a new panel.”
ENMAX had filed a request for a new hearing “before a fresh, three-member panel,” with the support of the Balancing Pool. ENMAX said Justice Jolaine Antonio, one of the three judges that heard the original appeal on July 8, “was observed actively playing Solitaire on a computer screen in front of her … which was reflected on the glass behind” her, according to the legal filing.
Justice Antonio apologized in a letter to the parties involved in the lawsuit but added that asking questions showed she was engaged and had also extensively prepared for the hearing.
“I write to extend my unreserved apology to you and your clients. I do not intend to make excuses, there is no excuse for causing litigants and their counsel to feel unheard and disregarded,” she wrote in an Aug. 17 letter to ENMAX, TransAlta Corp. and the Balancing Pool, in which she also recused herself from the appeal decision.
The hearing is part of a long-running dispute over power that has been litigated since 2013. The dispute arose after an eight-month power outage at TransAlta’s Keephills Unit 1 generating station in 2013. TransAlta claimed force majeure and forced ENMAX, which owned a power purchase agreement at Keephills, to buy alternate power sources on the open market.
Both ENMAX and the Balancing Pool disputed the claim and said the outage cost ENMAX, and the City of Calgary, by extension, about $128 million. The Balancing Pool claims $40 million of public funds are at stake, bringing the total to $168 million.
The case ended up in a three-week arbitration tribunal hearing in 2016, after which the three-member tribunal panel sided with TransAlta. ENMAX and the Balancing Pool then disputed the outcome of that arbitration, but an Alberta Court of Queen's Bench judge sided with TransAlta. The case was appealed to the appeal court on the issue of whether the arbitration award should be set aside on the grounds of natural justice.
The appeal was heard this summer. Because of COVID-19 protocols, the court conducted the hearing online. During the hearing, an ENMAX executive was able to see Antonio playing multiple rounds of Solitaire.
“I was absolutely shocked to observe Solitaire being played by a member of the Court during the Appeal Hearing, particularly given the limited time of an appeal,” said Erica Young, ENMAX chief legal officer and executive vice-president of corporate development, in an Aug. 18 affidavit.
Both ENMAX and the Balancing Pool, which oversees the transfer of power agreements in the province, asked that two other judges step aside.
“Any oral hearing is conducted in front of an indivisible quorum of judges. The court appears as a single panel,” McGrath said during the oral hearing on the matter in August. He added that in the eyes of the public, “the court is playing solitaire.”
Any reasonable person “would not want a justice of the highest court of Alberta playing solitaire during a hearing.”
ENMAX argues that the right to have an appeal decided by a full quorum of the court is a “substantive right,” and that “any dissent in its favour might enhance an application for leave to appeal to the Supreme Court of Canada.”
TransAlta argued that there is no reason to reargue the appeal and that the two remaining members of the panel could render a decision, and those previous findings of the Alberta appeal court and the Supreme Court of Canada in similar matters confirm that the conduct of one judge does not usually taint the entire panel.
The decision of Justices Slatter and Martin points out that ENMAX wants a new hearing, and the two judges disqualified from the panel through “no fault of their own.” The Balancing Pool also confirmed that it is “confident” that Justice Antonio's actions did not influence the remaining two members of the appeal panel.
The justices pointed out in their ruling “that If those with the most intimate knowledge of the situation do not, on a subjective basis, perceive any actual problem, why would a fully informed objective observer think differently?”
Still, while the two judges said they were entitled to rule on the matter if their opinions were unanimous, the fact that they were not unanimous means the appeal court will have to rehear the appeal.
"This application questions the appropriate procedure to be followed when an appellate judge recuses herself from the panel following the hearing of an appeal but before judgment is rendered. As matters have unfolded, the only option available is to direct a rehearing of the appeals.”
Lawyers involved in the case declined to comment. The Canadian Judicial Review Board sent an email saying the appeal court judges' decision "appears to conclude the matter." The email response added; "at this point, there would not appear to anything further that the CJRB could contribute in regard to the longstanding phenomenon or issue of sleepy or un-attentive or poorly educated judges."
As for ENMAX, a spokesperson for the company said in an email: "ENMAX is pleased the Alberta Court of Appeal has appointed a new panel to hear its appeal. Given the matter is still before the courts, ENMAX is unable to comment further."
